Drugs and Alcohol in the Workplace: What Impact Does Health and Safety Law Have?

There is a wide spectrum of health and
safety legislation, which places duties on employers and employees, but is
there any that regulates the (often difficult) issue of substance misuse in the
workplace?

The key pieces of health and safety
legislation that are applicable when considering these issues are:

Health and Safety at work (Northern
Ireland) Order 1978 (‘the Order’)

Management of Health and Safety at
Work Regulations (Northern Ireland) 2000 (‘the Regulations’)

The Order creates a general duty[1] on
employers to ensure the health, safety and welfare, so far as is reasonably practicable,
of all employees and of persons not in their employment[2]. There
is also a duty on employees to look after their own health and safety and to
cooperate with employers so far as is reasonable to enable them to fulfill
their duties[3].

The Regulations create duties on
employers to make suitable and sufficient assessments of risks to employees and
persons not in their employment[4] and to
make appropriate arrangements for the planning, organisation, control and
review of preventative and protective measures[5].

Failure to comply with the legislation
is a criminal offence, which could result in a prosecution of the Company
and/or an individual. Depending on the seriousness of the offence, the Court
can impose an unlimited fine and/or imprisonment for the individual.

What are your
responsibilities?

If a worker is under the influence of
drugs or alcohol then they may compromise
the health, safety and welfare of themselves and/or of others. Employers
have a duty to assess and manage any risks in order to ensure the health and
safety of employees and third parties and to take steps to remove or control
them.

The duty is to do what is reasonably
practicable. This does not, therefore, mean that an employer has to do
absolutely everything, just as much as is considered reasonably practicable. Employers
will need to balance the risk against the level and type of measures

that need to be taken to counteract
it. This can take into account factors such as: cost, benefit, the potential
for harm and the available technology.

If a Company knowingly allows a
worker, who is under the influence of drugs or alcohol to continue working,
then it could be in breach of the legislation.

Substance misuse can lead to absenteeism,
poor performance, and importantly, can create a risk to safety. It can cause impaired
judgement, which can have disastrous consequences in safety critical jobs. This
would almost certainly be considered as part of any investigation if something
went wrong.

What can you
do?

It is up to you how you comply with
your duties under the legislation. There is guidance, produced by HSENI and by
the Health and Safety Executive in Great Britain (‘the Guidance’), on these
issues. It can be found here and here. You are not legally
obliged to comply with the guidance, but it is a good starting point if you are
beginning to look at these issues, or reviewing policies you already have in
place.

The Guidance advises that employers
should introduce a policy, as part of the overall health and safety policy, to
deal with potential misuse of alcohol and drugs. The policy should be aimed at
helping and working with employees, rather than just being a disciplinary
matter.

Any policy should apply to all
employees and not just, for example, one area of the business.

You can also consider screening and/or
testing for substance misuse. This may be useful in dealing with any concerns.
The Guidance advises that, if it is felt to be necessary, then it should be
part of an overall policy (and not the only tool to deal with substance misuse)
and that there should be a clear aim of preventing risks to workers and others.

Screening and testing is a sensitive
issue so good communication with employees is advisable.

Be aware that you must also consider
your obligations under employment and data protection legislation.

Commentary

Employers have a general and
wide-ranging duty to protect the health, safety and welfare of employees and
third parties, which includes protecting against any risk caused by substance
misuse.

Prevention is better than cure – even
if substance misuse is not suspected, it would be advisable to:

Assess
the risk and consider whether preventative measures are required;

Implement
a policy and the Company’s position on this issue will be clear;